U.S. v. Maas, 05-CR-245.
| Decision Date | 05 August 2006 |
| Docket Number | No. 05-CR-245.,05-CR-245. |
| Citation | 444 F.Supp.2d 952 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael MAAS, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Christopher M. Bailey, Bailey Law Office LLC, Milwaukee, WI, for Defendant.
Gregory J. Haanstad, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.
SENTENCING MEMORANDUM
The government charged defendant Michael Maas with transferring a firearm to a felon, 18 U.S.C. § 922(d)(1), and transporting in interstate commerce wildlife taken in violation of state law, 16 U.S.C. §§ 3372 & 3373. He pleaded guilty to the wildlife count but went to trial on the firearm count. I found him guilty following a court trial.
The probation office prepared a presentence report ("PSR"), which calculated his base offense level on the firearm count as 14, U.S.S.G. § 2K2.1(a)(6)(B), then applied a 2 level enhancement under § 3C1.1 because defendant perjured himself at trial, for an adjusted level of 16. The PSR determined that the base level on the wildlife count was 6 under § 2Q2.1, which had no effect on the final level after application of the multi-count adjustment under § 3D1.4. Coupled with a criminal history category of I, the imprisonment range was 21-27 months under the advisory sentencing guidelines.
Defendant objected to several guideline determinations in the PSR and moved for a departure under § 5H1.6. In this memorandum, I address his contentions and set forth the basis for the sentence imposed.
On October 4, 2002, defendant purchased a Super X2 12-gauge shotgun at Gander Mountain. Although he certified that he was not acquiring it on behalf of another person, he actually bought the shotgun for his brother Scott because, as a convicted felon, Scott could not purchase it himself. Shortly thereafter, defendant gave the shotgun to Scott,2 and Scott took it on a hunting trip with defendant, Christopher Salzer and Cory Bledsoe to North Dakota in March 2003. During that trip, defendant and Scott accidentally shot three birds out of season.3 Even after realizing their mistake, they transported the birds to Wisconsin and brought them to a taxidermist. A state game warden saw the birds at the taxidermy shop, learned that the Maas brothers had brought them in, and launched an investigation.
Fish and Wildlife Service Special Agent Gary Jagodzinski interviewed defendant about the birds in January 2005, and defendant falsely stated that he shot them in Green Bay in the fall of 2003, which would have been legal. Jagodzinski confronted defendant with the results of a forensics analysis of the birds, which revealed that this was not possible, and told defendant that it was important to tell the truth. Defendant then admitted that he shot one of the birds in North Dakota, and someone else shot the other two. Jagodzinski said that the other person must have been Scott. Defendant replied that Jagodzinski would have to talk to Scott about it.
Jagodzinski then interviewed Scott and asked to see his (Scott's) guns. Scott responded by getting a key chain, opening a gun safe, and retrieving the Super X2 shotgun, as well as another rifle. Based on Scott's status as a convicted felon, Jagodzinski seized the weapons. Scott indicated that defendant purchased the weapon for him because he could not do so himself.
A state game warden also interviewed Salzer about the hunting trip and advised Salzer that Scott was a felon. Salzer, upset that he had been hunting with a felon, called defendant the next day and asked how Scott got a gun. Defendant responded that he bought the Super X2 for Scott.
Jagodzinski enlisted the Bureau of Alcohol, Tobacco and Firearms ("ATF") to run a trace on the Super X2 shotgun, which revealed that defendant was the recorded purchaser. Jagodzinksi, accompanied by ATF Special Agent Sandra DeValkenaere, re-interviewed defendant at defendant's home on April 27, 2005. Defendant admitted that he bought the Super X2 and stated that he gave it to Scott for safekeeping after his (defendant's) house burned down in 2004. Jagodzinski asked how, if this was so, Scott came to have the shotgun during the hunting trip to North Dakota in 2003. Defendant admitted that Scott had the gun on that trip but stated that it malfunctioned, and Scott used a different gun to hunt. Defendant further stated that he trusted his brother and knew he would not do anything wrong with the shotgun. Jagodzinski also asked defendant why he would give a gun to his brother knowing his brother was a felon. Defendant stated that his brother was young, drunk and stupid at the time of the incident—attempted theft of a snowmobile—that led to his felony conviction.
At trial, defendant denied telling the agents that he gave the gun to Scott for the March 2003 hunting trip, but I found his testimony incredible. Defendant also testified that he believed Scott's felony conviction was a juvenile matter that did not "count" for purposes of the ban on weapon possession.4 However, I also found this claim, which defendant did not share with the agents during the April 2005 interview, incredible. Further, the claim was rebutted by the fact that defendant, who had a juvenile felony adjudication himself, petitioned the state court to re-instate his right to possess firearms.
As noted, I found defendant guilty, ordered a PSR and set the case for sentencing.
In imposing sentence, I follow a threestep procedure. First, I determine the advisory guideline range, resolving any objections necessary to that determination. Second, I decide whether to grant any departures from the range under the Sentencing Commission's policy statements. Third, I determine the appropriate sentence under the factors set forth in 18 U.S.C. § 3553(a). See, e.g., United States v. Peralta-Espinoza, 413 F.Supp.2d 972, 974 (E.D.Wis.2006).
Defendant argued that the offense level on the firearm count should be 6 under § 2K2.1 (b)(2) rather than 14 under § 2K2.1(a)(6)(B). The latter provision provides for an offense level of 14 if the defendant was convicted under 18 U.S.C. § 922(d), which defendant was in the present case. U.S.S.G. § 2K2.1(a)(6)(B). However, § 2K2.1 (b)(2) provides that if the defendant, other than a defendant subject to subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5),5 "possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition," the level is decreased to 6. U.S.S.G. § 2K2.1 (b)(2). Application note 7 explains that:
Under subsection (b)(2), "lawful sporting purposes or collection" as determined by the surrounding circumstances, provides for a reduction to an offense level of 6. Relevant surrounding circumstances include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant's criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law.
U.S.S.G. § 21(2.1 cmt. n. 7.
In Scott's case, I applied § 21(2.1 (b)(2) because he possessed the shotgun at issue solely for lawful hunting purposes. United States v. Maas, 428 F.Supp.2d 888, 889-90 (E.D.Wis.2006). Defendant argued that it would be absurd to give Scott—the convicted felon—the lower level, but not him. The government countered that the guidelines apply to offenses, not cases, and that defendant's conviction of disposing of the firearm, rather than possessing it (as Scott did), rendered § 2K2.1 (b)(2) inapplicable.
The government found some support for its position in United States v. Miller, 224 F.3d 247 (3d Cir.2000). In that case, the majority held that § 21(2.1 (b)(2) did not apply when the defendant sold two handguns to an undercover officer and was subsequently convicted of selling firearms without a license under 18 U.S.C. § 922(a)(1)(A). The defendant argued that prior to the sale he possessed the guns for lawful sporting purposes, and that the sale should not disqualify him from the reduction to level 6. The court disagreed, reasoning that because he sold the firearms he did not possess them solely for sporting purposes.6 Id. at 255.
Perhaps because Miller involved a purely commercial transfer, and the evidence did not disclose what the defendant thought his purchaser planned to do with the guns, the court did not consider caselaw indicating that a defendant can obtain the reduction based on the nature of another's possession of the firearm at issue. In United States v. Mojica, 214 F.3d 1169 (10th Cir.2000), the court held that the defendant's lawful sporting purpose could be derivative of another's purpose. There, the defendant possessed a hunting shotgun which his brother, with whom he lived, had borrowed. Id. at 1170. The court noted that application note 7 does not require the defendant to transport or possess the firearm for his own sporting purposes. Instead, the note requires the court to examine the totality of the surrounding circumstances, including the specific circumstances of possession and actual use, rather than relying on a single factor. The court concluded that:
the rule of lenity requires consideration of the guideline in situations in which the defendant is not the sports enthusiast or collector but his possession is solely associated with or related to lawful sporting or collection purposes (i.e., he or she has not used the firearm in a manner inconsistent with those lawful purposes), such as in transporting or holding the firearm for another's lawful sporting or collection purpose.
Later, in United States v. Collins, 313 F.3d 1251 (10th Cir.2002), the court, relying on Mojica, held that the fact that the defendant transferred his hunting weapon to another to hold...
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